Dateline: St. Thomas, USVI:Terri Griffiths, the Acting Attorney General of the U.S. Virgin Islands, does a terrific Tony Soprano impression. She threatened to file criminal charges against the Virgin Islands Daily News for calling her after business hours on a cell phone number she provided in order to seek comment on news stories concerning her public responsibilities. It is not clear if she was serious, drunk, unmedicated, or positioning the Virgin Islands as the site of the next Far Cry sequel.

Critics of Bach’s argument for censoring the app argued that doing so would violate free speech — the ever-important bastion of people who like to say rude things on the Internet.

Free speech is constitutionally protected. Hate speech is not.

Leave aside for a moment the communications major's sneer at the First Amendment. Anderson offers a legal proposition: that "free speech" is constitutionally protected but "hate speech" is not. In American law, this is simply false. There is no legally recognized category of "hate speech," let alone any recognized exception to First Amendment protections for "hate speech." This is not subject to reasonable dispute. Please go sell ignorance somewhere else, Ms. Anderson; we're all stocked up here.

the LSU piece also calls for banning the use of a phone ap. I'm not exactly sure how a university is supposed to ban software from being downloaded and utilized on their students' phones. Unless she wants all students to submit their phones for regular inspection, which given the tone of the article isn't crazy to think.

@Thomas: I'm not arguing that it should be done, but TFA explains how it could be done without searching students' phones:

By partnering with a programming company that generates digital maps of almost all middle and high schools in the country, Yik Yak has been able to build a “fence” around these places, disabling the app while on school grounds. This could also be done for any college campus.

The UK does have much more sensible libel laws now. Truth is a defence, so is honest opinion, the burden of proof is on the plaintiff, it's much harder to forum-shop into the UK.

Defamation Act 2013 is a major improvement in UK libel law. The problem is that it's hardly been tested at all in court yet, and there's no proper anti-SLAPP provision, so defendant intimidation is still happening a lot.

I see your point. I did not read it as cumulative at first reading, as I am used to seeing a demand per person. I stand corrected to read as cumulative even without giving the total number of people getting demand letters. (approx 48 for 375k total?)

I had an argument not so long ago about whether hate speech was WORTH protecting, given that almost every other developed country has some sort of law against it, and doesn't suddenly implode on the speech front. Or so I am told.

For my part, some of the arguments in favor of banning hate speech start to sound decent. And then I get to countries that already ban certain speech. Look at, famously, Germany. Where it's illegal to deny the holocaust. The holocaust happened. There's plenty of evidence, no point denying it. That doesn't change that if you DO deny it, you should not be thrown in jail. You CERTAINLY shouldn't be thrown in jail as part of a 'legal proceeding' in which you are not allowed to defend yourself, where you have to plead 'guilty' or 'really guilty'.

I have yet to see anything so damaging from the worst hate speech as auto-incarceration for saying the wrong thing where somebody can hear you. I wish there was less hate speech. But I'll happily protect the worst hate speech you can find, in order to protect what *I* want to say at the same time. Because the line between 'good' and 'bad' speech is an awfully wobbly one indeed, and varies by who sits on the judge's seat, and who sits in the jury box. And given the average American's intelligence, that's not a gamble I care to take.

To me the weird thing about the formula “Free speech is protected, hate speech is not” – not the scary thing, the weird thing – is that implies a subset of speech that is free by its nature, independent of the legal environment.

Or does the phrase only mean “Speech not prohibited is not prohibited”?

Ooh, neat! Twitter is great for poking holes in overinflated blowhards. I just called Mr. Galloway an "anti-Semitic censorious twat with an ugly mug & a gangrenous ego." I hope I get a letter! I can put it on my wall and blow raspberries at it.

"Or does the phrase only mean “Speech not prohibited is not prohibited”?"

Pretty much. The first rule of tautology club is the first rule of tautology club.

There seems to be a belief, among some, that one can aim the Hate-o-tron 9000 at any expression of an idea, and instantly get back its value in kilonazis (http://www.giantitp.com/comics/oots0489.html), and then pass a law saying speech ranking 1.2 kilonazis or higher is illegal. No muss, no fuss. The idea that two people might have very different ideas about what constitutes "hate speech", and that the people most likely to be empowered to make these decisions are, invariably, the people no sane person would trust with that authority, never seems to occur to those of high ideals, good intentions, and no grasp of reality whatsoever.

Thankfully the US has that clause where we don't extradite (for expression-related crimes) to countries without equivalent free-speech protection.

Unfortunately, my support for that idea is only slightly better than the "you can't shout fire in a movie theater" (in that I haven't heard that idea disclaimed by a reputable blogger, with supporting cites).

If I were a Professor, teaching anything related to Constitutional Law at Louisiana State University, I would insist on enrolling her in a class and then giving her an "F", on grounds of that assertion alone.

I wish I thought there was a sufficiently grouchy Professor in place to do it. but instead she will be petted and made much of.

Re. George Galloway, it is certainly possible he isn't an anti semite, after all I have heard a decent half convincing argument that Herman Göring wasn't either, if the path of advancement power had required him to philosemitic he would certainly manage to appear that as well.

Now that I think on it, one might even suspect that Göring might in truth have been less of an anti semite than George Galloway, who am I to say.

I hope that keeps me on the right side of British Libel law, but if it doesn't I will stand by it. Ken is certainly welcome to share my email address with any accredited representatives of Mr Galloway, or Mr. Göring for that matter.

Legal nonsense aside, there's something deeply troubling about a student wanting her university to control what applications she runs on her phone. To begin with, she's an adult and presumably wants to be treated as one, rather than as an attendee at some expensive daycare program. It also seems laughable that Yik Yak is itself the problem she'd like to fix: "yes, yes, we're very racist, but as long as we don't have a digital forum for expressing it, this place will be very welcoming to black people". Finally, even in the absence of constitutional protection–like say if LSU were private and made using Yik Yak grounds for expulsion–wanting university bureaucrats to ban an entire medium because it is commonly used to communicate stuff you don't like is both unprincipled and short-sighted.

I'd go so far as to say that her misunderstanding of the First Amendment is the *least* of her op-ed's problems.

It's a shame Terri Grifftihs and Kirby Delauter aren't married. What a perfect storm of censurious dipshittery that would be. At least she didn't tell the newspaper they couldn't print any stories about her without her permission.

I have a degree with honors in MassComm, and frankly, son I am disappoint. In a media law course I took we spent a fair amount of time reviewing the first amendment and discussing what constituted Libel, Defamation, and protected speech/expression. Never once was "Hate Speech" mentioned as not protected by the First Amendment. I was taught it was important to defend everyone's right to expression of opinion, even if it's racist/sexist/homophobic "ARGLE-BARGLE I hate people who are different" asshattery. (Frankly, seems it's more often the asshats that make news or wind up in court – less so your average citizen with nothing insane to bloviate about).

Long story short, if Logan took a Media Lit or Media Law class, she should probably demand her money back.

Anton Sherwood: The short version is: you can say what you want, until you go so far over the line that everybody agrees that your crossed it. I can recall, offhand, exactly two instances of that occurring:

1) The Westboro "Baptist" "Church" declared an intention to come to Australia and protest at Heath Ledger's funeral. The Australian Government replied that no, thank you, we would decline to welcome them to our fine nation for that purpose. (Australia was pretty unified on that one. If you want to come to our country and protest at our government, that's… odd, but if it makes you happy, sure. The addresses of the various Parliaments, state and federal, are readily available, and if you want to make the extremely long and tedious journey to stand outside them and shout, well, have fun, mate. If, however, you wish to spew filth disrupting a funeral, we'd rather you didn't come here at all, and if you do, the police will be escorting you away from the event, because there are some things that we Do Not Do in this country, and that is very definitely one of them.)

2) A columnist named Andrew Bolt wrote some spectacularly offensive racist remarks in his Herald Sun column. Some people brought action under the Racial Discrimination Act against him and the Herald Sun, seeking an apology, a gag order on republishing the articles and blogs, and "other relief as the court deems fit". (They did not seek damages.) The court ruled that he had contravened the Act.

He did not face criminal charges; he remains employed by the Herald Sun to this day, and that particular decision was reasonably controversial, even though the court's ruling amounted to nothing more than: "Yes, we confirm that what he wrote was officially offensive."

As a rule, if you aren't a high-profile media or political figure, you can say what you want. If you speak from a platform that provides you with prominence and influence, then you risk consequences for saying things that qualify as racial vilification, or other things defined as hate speech, but it happens very, very rarely. Usually, if someone says something generally considered offensive, the consequences are more social; a few people have lost their media jobs because they suddenly became liabilities for their employers due to public outrage and hostility, but that's not censorship and anyone who thinks it is needs to sit on their hands and play the quiet game for a little while. A few cases have involved professional sport; players tend to face discipline from the supervising body of the sport, but that's not government censorship either.

I'm not sure the subset of the American Founding Fathers who thought that a Bill of Rights was a bad idea were wrong. The argument was that if you established definite Rights, then people would think that anything *not* specified wasn't a right at all. In the USA, it seems like that mindset has kind of taken hold, and so you keep ending up at this, "BUT WHERE WILL IT END??" thing when it comes to any kind of limitation of free speech.

The Australian Constitution doesn't really deal with individual rights, in that it doesn't really deal with individuals at all; it largely outlines the framework of Federation and the relationships between the Federal and State governments. The answer to where it will end is: there. It ends there, because Australians, overall, agree that racial vilification is bad, and therefore it has a place in the Racial Discrimination Act, but allowing a definition of hate speech and prohibiting it does not somehow grant the government magic censorship powers over all Australian life.

"In the USA, it seems like that mindset has kind of taken hold, and so you keep ending up at this, "BUT WHERE WILL IT END??" thing when it comes to any kind of limitation of free speech."

Have you ever looked at the United States government's ability to act with discretion? What the FUCK in the history of the United States makes you think that OUR government is actually capable of respecting limitations, as you seem to argue that the Australian government does? Our supreme court voted 5 to 4 to define "giving shit to private corporations in the hope that they'll eventually pay some taxes" counts as "public use" of land. Our president, who ran on a platform of rebuking imperial presidency, admits to keeping an extrajudicial KILL LIST. Congress, which is more divisive (and yet somehow less entertaining) than any commonwealth realm parliament I've ever seen, regularly sticks its fingers into pies it has no business touching.

There is no goddamn reason to believe that such laws would EVER result in anything less than abuse and petty tyranny (in the best case scenario) at the hands of US politicians. There is, in fact, a long and venerable history of EXACTLY that sort of behavior. So that's one reason to be nervous.

But that's not really the MAIN reason Americans are so fond of taking an extremist view on free speech. At least, not directly.

See, here's the thing: we know we're fucking idiots. Without qualification: America is full of goddamn morons.

We don't trust our executive branch, because it's comprised of Americans: fucking idiots, elected by fucking idiots (or appointed by fucking idiots, who were in turn elected by fucking idiots).

We don't trust our judicial branch, because it's comprised of Americans: fucking idiots, nominated by fucking idiots who were elected by fucking idiots, and then confirmed by fucking idiots who were elected by fucking idiots.

You see? It's fucking idiots, all the way down.

Because of that, we don't actually EXPECT our government to get things right. Any of the branches. The Supreme Court of the United States upheld the status of slaves as property, and then went on to uphold segregation and turn a blind eye to voter suppression. Congress has passed absurd laws to deprive men and women of basic rights. The executive branch TODAY claims the right to maintain an extrajudicial "kill list".

So we don't rely on the government to move forward as a people. Occasionally, we call upon them to handle some of the last little remnants of the work, but in general, we don't trust them to get enough shit right to actually move forward as a country.

Instead, our ability to progress relies on a more basic– and chaotic, messy, and unreliable– mechanism: discussion. We discuss things. We "discuss" things. We let assholes like Bill O'Reilly and Bill Maher discuss things, God help us. We get loud. We get acrimonious. We get riled up and pissed off, and big fucking fights start over it. We call names. We scream epithets, we make horrible insinuations, we use words that no civilized an or woman has any business using (terms regularly thrown against the incumbent president are horrible, and– since 2008– often include racial slurs, which goes to reinforce the "fucking idiots" point made above).

But the few of us who AREN'T fucking idiots also do something more: they engage in some of the most soaring rhetoric, beautiful imagery, and incredible grass-roots work to bring people around to reasonable ways of thinking.

Take the Supreme Court's decision in the upcoming Obergefell v Hodges case (which will affect gay marriage laws nationwide). Whichever way the court rules, the decision will be historic– but in the long run, the war has been won. American attitudes about gay marriage have become OVERWHELMINGLY positive in a fairly short period– as Randall Munroe pointed out, in terms of public approval, opponents of same-sex marriage are more like opponents of interracial marriage in the 1990s, not opponents of interracial marriage in the 1960s.

The Supreme Court's decision in the case will be a mere MARKER of progress, and only an incidental MAKER of progress. The people MAKING the bulk of the progress are folks like George Takei, Harvey Milk, Dan Savage, Ellen Degeneres, Josh Seefried, Tim McFeely, and a host of others. In 1995, their views were not well-received: maybe 1/3 of people approved of gay marriage. Without strong views of free speech, how easy would it have been for 66% of the population to demand a law demanding that such "vile" ideas not be promoted in America? It CAN happen, goddammit– and if you don't believe me, ask Vladimir Putin.

So Americans take a VERY skeptical view of restricting speech, because there's a lot of it that we COULD HAVE banned, but are better off NOT having banned. And you know what? It works, even when there are some assholes. There are hate-speech spewing dickbags in this country. I've met a few, and I've not been impressed. The KKK has equal status under the law to spout their bigoted, hateful bullshit. Their members have equal right to run for office, to stand on a platform of amending the constitution and bringing back the "good old days" of slavery, and to ask people to support their quest to enshrine their idiocy in law.

But, as a nation that has mostly beyond such stupidity, we don't fear that happening. Because white supremacist assholes AREN'T TAKEN SERIOUSLY by most Americans. Their sick and broken ideas have had their fair hearing in the court of public opinion, and been found wanting. The idea of trusting the fucking idiots in Congress to tell these particularly-fucking-idiotic fucking idiots to shut up seems… well, it seems unnecessary. And if somebody wants to push the matter of shutting them up, well– we don't trust Congress to get it right.

I'm not saying that attitude in the US is entirely unjustified at this point, although I think there's an argument that the "messy" nature has a certain element of death toll to it. The level of security required to keep US presidents from being murdered is mind-boggling. (By contrast, security around Australian Prime Ministers is nearly nonexistent a lot of the time, and we've had three of them die in officer ever; heart attack, heart disease, and "went swimming, disappeared, presumed drowned".)

I don't think that's about levels of free speech, though. The factors influencing all this will be many and varied, and probably include things like the way your politics get more entrenched, because so many congressional districts are so gerrymandered that if a candidate wants to secure their seat, they seem to go more extreme, whereas in Australia, in most seats, if your seat is shaky, you have to move to the centre. Preferential voting factors in to this; you also can't win just by splitting the opposition. As does mandatory voting, as you can't win by suppressing the votes of minorities, either. If an Australian citizen doesn't vote, the AEC asks why not. If the answer turns out to be that someone prevented them in some way, that person is in trouble.

Mostly I brought that up because someone queried the "free speech" thing after I noted that Australia has some restrictions on hate speech but still has free speech, and I've become accustomed to a certain expectation that an American will step in and make histrionic predictions about how since Australia does things like, for example, decline to welcome the Westboro arsery to our fair nation this therefore means that GUBMINT THOUGHT POLICE is inevitable, which… no, no it isn't.

(Seriously, if they'd said they were coming to Australia to protest at Parliament House there would have been a very high likelihood of counter-protest, particularly by Christian groups, but there would not have been a unanimous national agreement of Oh No You Don't. We have *standards*.)

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